Roundtree v. Colvin

Filing 25

ORDER denying 15 Motion for Judgment on the Pleadings; granting 17 Motion for Judgment on the Pleadings; adopting Report and Recommendations re 20 Memorandum and Recommendations. Signed by Senior Judge James C. Fox on 1/30/2017. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:15-CV-00154-F
ROSE M. ROUNDTREE,
Plaintiff,

v.
NANCY A. BERRYHILL, 1
Actmg Commissioner of Social Security,
Defendant.

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ORDER

Before the court are the following:
(1)the Memorandum and Recommendation ("M&R") [DE-20] ofUnited
States Magistrate Judge Robert B. Jones, Jr.; and
(2) the partie~' cross Motions for Judgment on the Pleadings [DE-15, -17].
The issues have been fully briefed, and the matter is now ripe for ruling. For the reasons
addressed below, this court ADOPTS the findings and recommendations of the Magistrate Judge,
Plaintiffs Motion for Judgment on the Pleadings [DE-15] is DENIED, Defendant's Motion for
Judgment on the Pleadings [DE-17] is ALLOWED, and the Commissioner's final decision is
AFFIRMED.

I. DISCUSSION
A. The Magistrate Judge's M&R
1. Legal Standard
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the

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Pursuantto Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill, Acting
Commissioner of Social Security, has been added as a party. Carolyn W. Colvin's term expired
on January 20, 2017, and she has been terminated as a party.

court. See Mathews v. Weber, 423 U.S. 261,270-71 (1976). This court is charged with making a

de novo determination of those portions of the recommendation to which specific objections are
made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's
recommendation, or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b)(1). In the absence of a timely-filed objection, a district court need not conduct a

de novo review, but instead must "only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation." Diamond v. Colonial Life & Ace. Ins. Co., 416
F.3d 310,315 (4th Cir. 2005).
On December 6, 2016, the Magistrate Judge issued a M&R, in which he recommended
that Plaintiffs Motion for Judgment on the Pleadings [DE-15] be denied, Defendant's Motion
for Judgment on the Pleadings [DE-17] be allowed, and the Commissioner's fmal decision be
affirmed. The Magistrate Judge advised the parties of the procedures and requirements for filing
objections to the M&R and the consequences if they failed to do so. Plaintiff filed Objections
[DE-21] to the M&R, to which Defendant filed a Response [DE-22].

2. Plaintiff's Objections to the M&R
Plaintiff argues that the Magistrate Judge erred in finding that her case is distinguishable
from Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), because in Plaintiffs case, the
Administrative Law Judge ("ALJ") did not just limit her to simple, routine, repetitive tasks, "but
added. additional limitations to account for [Plaintiffs] difficulties in maintaining attention and
concentration, and [she] has not demonstrated how these additional restrictions are inadequate."
Pl.'s Objections [DE-21] at 2 (quoting M&R [DE-20] at 7).

In Mascio, the Fourth Circuit Court of Appeals determined that remand was warranted for

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three distinct reasons, only one which is relevant here. 780 F.3d at 632. In particular, the Fourth
Circuit concluded that the hypothetical posed by the ALJ to the vocational expert ("VE"), and the
corresponding residual functional capacity ("RFC") assessment, failed to include any mental
limitations other than "unskilled work," yet at step three of the sequential evaluation, the ALJ
found that the claimant had "moderate difficulties in maintaining her concentration, persistence,
or pace as a side effect of her pain medication." !d. at 637-38. The Fourth Circuit held that it
"agree[d] with other circuits that an ALJ does not account for a claimant's limitations in
concentration, persistence, and pace by restricting the hypothetical question to simple, routine
tasks or unskilled work." !d. at 638 (quoting Winschel v. Comm 'r ofSoc. Sec., 631 F.3d 1176,
1180 (11th Cir. 2011) (internal quotations marks omitted).

In this case, the ALJ found that Plaintiff "had showp a decreased ability in attention and
concentration but not to the extent that a marked finding is appropriate and she can still perform
simple, repetitive, routine tasks." (Tr. 39). In the ALJ's RFC assessment and corresponding
hypothetical to the VE, the ALJ limited Plaintiff to "simple routine repetitive tasks with no fast
pace, only brief and superficial contact with others," and "no more than concrete judgment
should be required ofher." (Tr. 40, 71-72).
The Magistrate Judge found that "in assessing [Plaintiffs] ability to maintain
'concentration, persistence, or pace' the ALJ found [she] had demonstrated a decreased ability in
attention and concentration." M&R [DE-20] at 6 (citing Tr. 6). The Magistrate Judge
considered the ALJ's RFC assessment and found that the "limitations on task complexity,
interaction with others, and the pace of work, are sufficient to address [Plaintiffs] moderate
limitation in maintaining attention and concentration." !d. .Now, Plaintiff argues that the

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Magistrate Judge erred by finding that these additional limitations were sufficient to address her
moderate difficulties in maintaining concentration, persistence, or pace.· Pl.'s Objections [DE21] at 2-4.
a. Plaintiff argues that the limitation to "superficial contact with others" is
insufficient.
Initially, Plaintiff argues that the limitation to "superficial contact with others"
is insufficient because it relates solely to the domain of social functioning, which includes a
claimant's "capacity to interact independently, appropriately, effectively, and on sustained basis
with other individuals." Id. at 2 (quoting 20 C.F.R. pt. 404, Subpt. P, App. 1 § 12.00(C)(2)).
The evidence of record and the ALJ' s decision belie Plaintiffs argument. For instance,
when evaluating Plaintiff's social functioning, the ALJ found that she had only "mild
difficulties." (Tr. 39). Moreover, the ALJ's decision reveals that he considered Plaintiffs
allegations, such as the claim that she suffered a nervous breakdown in 2010, and as a result, she
experienced racing thoughts, depression, crying, and could not concentrate. (Tr. 40, 58-59). The
ALJ concluded that Plaintiffs allegations were not fully supported by the evidence, including her
treatment history, clinical findings on examination, and evidence of improvement with treatment.
(Tr. 41-43). The ALJ explained that he gave "great weight" to the opinion ofDaniel Nelson,
Psy.D., the State agency psychological consultant. (Tr. 43). Dr. Nelson opined that Plaintiff was
capable of sustaining attention and concentration to perform simple repetitive tasks, her ability to
maintain attention and concentration for extended periods was "not significantly limited," and
she was able to tolerate the stress and pressure of day-to-day work activity with limited demands
for production. (Tr. 139-40). Dr. Nelson ultimately found that Plaintiff could perform simple,
routine, repetitive tasks "in a low stress setting." (Tr. 140). In light of the evidence of record and
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Dr. Nelson's opinion, which was afforded "great weight," it is reasonable to conclude that the
ALJ included the limitation to "brief and superficial contact with others" as a work-related
restriction that would reduce the overall stress of the work setting and not solely for the purpose
of addressing Plaintiffs difficulties with social interaction.
b. Plaintiff argues that the limitation to "no more than concrete judgment" is vague
and not adequately defined.
Next, Plaintiff argues that the limitation to "no more than concrete judgment" is vague
and not adequately defined by the ALJ. Pl.'s Objections [DE-21] at 3. According to Plaintiff, it
is unclear how this limitation translates into a workplace limitation. !d.
"Use of judgment'' is one of the abilities and aptitudes necessary for most jobs. See 20 ·
C.F.R. §§ 404.1521(b), 416.921(b); Sutton v. Colvin, No. 4:15CV129, 2016 WL 7426591, at *9
(E.D. Va. Nov. 29, 2016). Different levels of judgment are necessary for varying levels of work.
For example, unskilled work requires "little or no judgment to do simple duties that can be
learned on the job in a short period of time." 20 C.F.R. §§ 404.1568(a), 416.968(a);
McClanahan v. Colvin, No. TMD 16-44,2016 WL 6822478, at *3 n.2 (D. Md. Nov. 18, 2016).
On the other hand, skilled work requires the use of judgment in "dealing with people, facts, or
figures or abstract ideas at a high level of complexity." 20 C.F.R. §§ 404.1568(c), 416.968(c);
Campbell v. Colvin, No. 2:11cv563, 2013 WL 1213062, at *2 n.4 (E.D. Va. Mar. 1, 2013).
"Judgment" is defined as "[t]he mental faculty that causes one to do or say certain things at
certain times, such as exercising one's own discretion or advising others; the mental faculty of
decision-making." Black's Law Dictionary (lOth ed. 2014). The term "concrete" is defined as
being "of a particular or exact sort." Merriam-Webster Dictionary,
https://www.merriam-webster.com/thesaurus/concrete (last visited Jan. 25, 2017). An antonym
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of concrete is "nonspecific." !d.
In light of the meaning of the terms "concrete" and 'judgment," the ALJ's finding that
Plaintiff was limited to "no more than concrete judgment" makes sense and refers to a limitation
on the nature and complexity of the decision-making required. This limitation also permits an
accommodation for deficits in attention and concentration that would impact Plaintiffs ability to
engage in abstract decision-making.
Plaintiff asks rhetorically whether the ALJ intended the term "concrete judgment" to be a
reference to the General Education Development ("GED") classification scheme found in the

Dictionary of Occupational Titles ("DOT"). 2 Pl.'s Objections [DE-21] at 3. The only authority
giving particular significance to the DOT's GED classifications in Social Security disability
adjudication is the statement that the Social Security Administration will "take administrative
notice" of the DOT. See 20 C.P.R. §§ 404.1566(d)(l), 416.966(d)(1); see also Massachi v.

Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007); DeLoatche v. Heckler, 715 F.2d 148, 151 n.2
(4th Cir. 1983). Thus, the answer to Plaintiffs question is no.
Plaintiff relies on Henderson v. Colvin, 643 F. App'x 273 (4th Cir. 2016) (unpublished),
to support her claim that there was a conflict between the ALJ' s RFC finding and DOT
Reasoning Code 2. Pl.'s Objections [DE-21] at 3-4. Plaintiffs reliance is misplaced. In

Henderson, the Fourth Circuit Court of Appeals concluded that there was an apparent conflict

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Occupations are classified in the DOT based upon GED in mathematics, literacy, and
reading. DOT App. C, Section III, 1991 WL 688702; Harper v. Colvin, No. 3:14CV49 TSLJCG, 2015 WL 898235, at *6 (S.D. Miss. Mar. 3, 2015).
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between an RFC limitation to "one-to-two step instructions" and GED Reasoning Code 2. 3 643
. F. App'x at 276-77. The cases are distinguishable. Here, the ALJ did not limit Plaintiffto oneto-two step instructions. (Tr. 40). Moreover, there is otherwise no such apparent conflict in this
case.
c. Plaintiff argues that the limitation to "no fast pace" fails to account for moderate
limitations in concentration, persistence, or pace.

In her fmal objection, Plaintiff argues that the ALJ's RFC limitation to "no fast pace"
fails to account for moderate limitations in concentration, persistence, or pace. Pl.'s Objections
[DE-21] at 4.
It is true that some district courts have found that a limitation to "no fast production," or a
similar limitation, fails to account for the claimant's moderate difficulties in concentration,
·persistence, or pace. See Hyatt v. Colvin, No. 1:15-cv-750, 2016 WL 4532130, at *4 n.4
(M.D.N.C. Aug. 29, 2016) (citing cases). Nonetheless, many district courts within the Fourth
Circuit have concluded that similar limitations adequately address moderate difficulties in
concentration, persistence, or pace. See M&R [DE-20] at 6 (citing Reiser v. Colvin, No. 5:14-cv850-FL, 2016 WL 1183092, at *8 (E.D.N.C. Mar. 28, 2016); Weeks v. Colvin, 5:14-cv-155-D,
2015 WL 5242927, at *2 (E.D.N.C. Sept. 8, 2015); Linares v. Colvin, No. 5:14-cv-00120, 2015
WL 4389533, at *4 (W.D.N.C. July 17, 2015)); see also Hillard v. Colvin, No. ADC-15-1442,
2016 WL 3042954, at *6 (D. Md. May 26, 2016) (finding that an RFC with a limitation to
"nonproduction work without frequent interaction with coworkers or the public" addressed the
claimant's ability to stay on task); White v. Colvin, No. 1:14-CV-161-RLV, 2016 WL 1600313,

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GED Reasoning Code 2 requires an employee to "[a]pply commonsense understanding
to carry out detailed but uninvolved written or oral instructions." DOT, 1991 WL 688702.
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at *6 (W.D.N.C. Apr. 21, 2016) (finding that a limitation to "simple, routine, repetitive tasks in a
stable work environment at a nonproduction pace" satisfied Mascio); Taylor v. Colvin, No. 3:14cv-510-GCM, 2016 WL 1032345, at *7 (W.D.N.C. Mar. 15, 2016) (finding that restricting
Plaintiff to an environment that does not entail an "assembly line pace" and a "low production
setting" accounts for limitations on concentration, persistence, or pace); Lee v. Colvin, No. 5:15CV-142-D, 2016 WL 816784 at *1-2 (E.D.N.C. Feb. 29, 2016) (fmding that an RFC including a
limitation against "fast paced or quota based work" comports with Mascio); Dixon v. Colvin, No.
4:14-CV-228-FL, 2016 WL 520293, at *7 (E.D.N.C. Jan. 21, 2016), adopted by 2016 WL
538460 (E.D.N.C. Feb. 9, 2016), (listing cases and finding Mascio to be distinguishable where
the ALJ included additional limitations addressing pace, social interaction, and work
environment); Shirey v. Comm 'r, No. SAG-15-261, 2015 WL 7012718, at *4 (D. Md. Nov. 10,
2015) (finding that the "limitation to an environment free of fast-paced production requirements
assures that [the claimant] is not required to produce any particular volume of work-product at a
particular rate" and also accounted for any time that the claimant would be off-task due to her
limited ability to maintain focus); Fordv. Colvin, No. 4:14-CV-79-D, 2015 WL 5008962, at *3
(E.D.N.C. Aug. 19, 2015) (finding that RFC limitations to a "low production occupation"
accounted for the claimant's pace, "no constant change" accounted for persistence, and "no loud
noises" accounted for concentration). This court chooses to adopt the latter view, the view
recommended by the Magistrate Judge.
In sum, the ALJ' s RFC limitations adequately address Plaintiffs difficulties in the

domain of concentration, persistence, or pace. In addition, as the Magistrate Judge pointed out,
the ALJ specifically found that Plaintiff had demonstrated a decreased ability in attention and

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concentration and found that the limitations in the RFC sufficiently addressed this moderate
limitation. M&R [DE-20] at 6 (citing Tr. 39, 40)). The Magistrate Judge found this case
distinguishable from Mascio because these additional RFC limitations were not present in

Mascio and because Plaintiff "has not demonstrated how these additional restrictions are
inadequate." !d. at 7. This court finds the Magistrate Judge's logic persuasive because Mascio
requires consideration of the adequacy ofthe RFC, both in light ofthe evidence and the ALJ's
reasoning and explanation. Consistent with Mascio, the Magistrate Judge considered the
adequacy of the RFC in light of the evidence and the ALJ's reasoning and explanation before
finding that Plaintiff failed to demonstrate the insufficiency of the additional restrictions.

II. CONCLUSION
In light of the foregoing, and upon de novo review of the portions of the Magistrate
Judge's M&R to which specific objections were filed, the court ADOPTS the findings and
recommendations of the Magistrate Judge, Plaintiffs Motion for Judgment on the Pleadings
[DE-15] is DENIED, Defendant's Motion for Judgment on the Pleadings [DE-17] is
ALLOWED, and the Commissioner's final decision is AFFIRMED.
The Clerk of Court is DIRECTED to close the case.
SO ORDERED.
This, the ]IJ day of January, 2017.

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